Notes taken from materials and transcripts provided by the Université catholique de Louvain.

The expansion of human rights — the United Nations and the Universal Declaration of Human Rights

  • Human rights have a long history in the constitutional law of various states.
  • The 1941 Atlantic Charter (between the UK, US and other Allied powers) contained eight principles which Roosevelt and Churchill considered would be fundamental to the post-war world order, and included, inter alia:
    • the right of self-determination of peoples, and
    • the right of all peoples to live free from fear and free from want.
  • Freedom from fear and want were repeated in the 1942 Declaration of the United Nations.
  • The United Nations Charter was signed on 26 June 1945.
  • The establishment of the UN proclaimed human rights to be a subject of international concern.
    • One purpose of the UN was defined as promoting and encouraging respect for human rights and fundamental freedoms, without discrimination as to race, sex, language or religion.
  • The UN Charter does not actually contain a list of human rights:
    • Human rights are referred to but not enumerated in:
      • the preamble,
      • article 1,
      • chapter IX,
      • article 55, and
      • article 56.
  • The representative of Panama at the San Francisco conference, Ricardo Alfaro, had the objective of inserting a catalog of human rights into the Charter.
    • Alfaro was an eminent lawyer and former President of Panama, and was later a main negotiator on the 1948 Convention for the Prevention and Repression of the Crime of Genocide, member of the International Law Commission, and member of the International Court of Justice.
    • Alfaro had worked within the American Law Institute to draft the 1944 Statement on Essential Human Rights.
      • He believed this should be included in the UN Charter.
      • The proposal was dismissed largely because the delegates thought it was too complicated to settle in the short time available.
  • The Economic and Social Council (‘ECOSOC’) was established by article 68 with the duty to establish thematic commissions and working groups in economic and social fields and for the promotion of human rights.
    • Shortly after the Charter entered into force, the Commission on Human Rights was established.
      • The Commission had 18 member states when it was established in February 1946.
      • When it met for the final time in 2006, it had 53 member states.
    • The Commission on the Status of Women was established in June 1946.
      • The 1979 Convention on the Elimination of All Forms of Discrimination against Women was negotiated within this Commission.
  • The Commission on Human Rights was later assisted by a body of independent experts, the Sub-Commission on Prevention of Discrimination and Protection of Minorities; in 1999 its name was changed to the Sub-Commission on the Promotion and Protection of Human Rights.
    • Both were disestablished in 2006.
  • The Commission on Human Rights created three working groups on human rights:
    • The first working group was responsible for drafting one set of principles.
      • It was chaired by US delegate Eleanor Roosevelt.
      • Another member was French delegate Rene Cassin, then President of the Council of State in France and later President of the European Court of Human Rights.
    • The second working group was responsible for developing a treaty to protect human rights.
    • The third working group was responsible for developing monitoring mechanisms to protect human rights.
  • Eleanor Roosevelt’s working group developed the Universal Declaration of Human Rights.
    • In 30 articles the UDHR lists all universally recognised human rights that would be developed through various treaties.
      • These include civil, economic, political, social and cultural rights.
      • The UDHR reflects their interdependent, indivisible and equal importance, even though later they were separated into different categories.
      • Social rights, like the right to social security, often require statement involvement for their fulfilment.
      • The realisation of many rights requires international cooperation, and is dependent on the organisation and resources of a state.
    • It was considered unrealistic to have a detailed, legally-binding treaty, so it was framed as a set of broad principles.
  • The UDHR was adopted on 10 December 1948 by the 58 members of the UN General Assembly.
    • 48 members voted in favour, 8 abstained.
      • South Africa abstained; it had just established its apartheid regime.
      • Saudi Arabia abstained; it was opposed to the idea that one should be free to choose and leave one’s religion.
      • The USSR and its satellite states were afraid that it would lead to UN interference in domestic affairs.
  • John Peters Humphrey, a professor of international law in Canada, was in charge of preparing the work of the UDHR working group.
    • Humphrey essentially compared the various documents protecting human rights at the domestic level and identified common aspects.
    • Documents considered included:
      • Magna Carta, adopted in England in 1215, which restricted the powers of the monarchy and protect certain rights.
      • Declaration des Droits de l’Homme et du Citroyen, adopted in France in 1789, which stated the essential rights of the French people.
      • The US Bill of Rights, initially adopted in the 1787, and gradually expanded.
    • Humphrey also drew from the liberal constitutions adopted in the 1830s and 1840s by states that became democracies.
    • Essentially, international human rights are the product of domestic constitutional law.

The expansion of human rights — treaties

  • After the UDHR was adopted, states had to decide how to implement its promises into legally-binding treaties.
  • Initially a single, universal convention was planned, covering all the rights of the UDHR.
  • Diplomats working within the Commission on Human Rights came to the consensus that separate instruments should be used dealing with:
    • economic, social and cultural rights, and
    • civil and political rights.
  • In 1951 the UNGA requested the Commission work on two separate treaties — both sets of rights were considered interdependent and indivisible, but their implementation and realisation required different approaches and legal techniques.
  • The first human rights treaty adopted was the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.
    • This was prioritised largely at the insistence of newly-independent states from Asia and Africa.
    • It was ratified quickly and entered into force in 1969.
  • The twin covenants implemented the UDHR and were adopted together on 16 December 1966:
    • the International Covenant on Civil and Political Rights (‘ICCPR’), and
    • the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).
  • Altogether there are nine agreements that form the core of the UN human rights treaties, which include, inter alia:
    • the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (entered into force 2010), and
    • the 2006 Convention on the Rights of Persons with Disabilities (entered into force 2008).
  • The Racial Discrimination Convention had been ratified by 177 states by the end of 2015.
  • The ICESCR had been ratified by 164 states by the end of 2015 (the US is a notable exception).
  • The ICCPR had been ratified by 168 states by the end of 2015 (China and the US are notable exceptions).
  • Most states ratify the twin covenants together.
  • Only the ICCPR established a body of independent experts (the Human Rights Committee) to supervise compliance.
    • The Committee on Economic, Social and Cultural Rights was created by ECOSOC in 1985 and didn’t start work until 1987.
      • This was 10 years after the ICESCR entered into force, and 20 years after it was signed.
      • It was initially believed that it would be inappropriate for independent experts to monitor compliance with such imprecise rights.
  • The ICCPR provides that states should establish effective remedies at the domestic level via courts and quasi-judicial bodies.
    • Rights in the ICCPR are considered justiciable and enforceable — compliance can be easily monitored by independent bodies.
    • Rights in the ICESCR often require government action (rather than abstention), so are harder to enforce objectively.
  • The ICCPR had an Optional Protocol from its adoption, which provided for ‘communications’ to be received by the Human Rights Committee from aggrieved individuals.
    • This was lacking from the ICESCR, but in 2008 an Optional Protocol was adopted giving this competence to the Committee on Economic, Social and Cultural Rights.
  • The 1979 Convention on the Elimination of all Forms of Discrimination Against Women had 189 state parties by the end of 2015.
    • In 1999 an optional protocol established a committee of experts that receives state reports and individual communications filed against states.
  • The 1989 Convention on the Rights of the Child is the most widely-ratified UN human rights instrument — 196 state parties (the US is a notable exception).
    • It brings together civil, political, economic, social and cultural rights which should be enjoyed by the child.
    • It cannot be suspended in times of war or emergency.
  • The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (entered into force 2003) has had limited ratification, mostly only African and Latin American countries.
    • There has been limited ratification among the developed countries, which have shown no interest in moving toward ratification.
  • The ninth main treaty is the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
  • Other major treaties outside the nine core treaties include, inter alia:
    • The 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
    • The Convention on the Status of Refugees.
    • The 1951 Geneva Convention.
    • The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
    • The International Convention on the Suppression and Punishment of the Crime of Apartheid.
  • The nine core UN human rights treaties have common characteristics:
    • They have their source in the UDHR.
    • They follow the same logic and establish independent expert bodies (except for the ICESCR) to receive individual communications (complaints).
    • The human rights treaty bodies adopt authoritative statements defining their understanding of the requirements of the respective treaty.
    • They influence each other and have a degree of shared jurisprudence, leading to consistency.
  • Human rights law has also developed under regional systems and national systems:
    • The Council of Europe.
    • The Organization of American States.
    • The Africa Union.
    • Domestic Supreme and Constitutional Courts.
  • Together, the international, regional and domestic instruments, bodies and courts influence each other and form a corpus of human rights law.
    • Example: article 11 of the 1950 European Convention on Human Rights states that freedom of association (including freedom to form and join trade unions) ‘shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police, or of the administration of the state.’
      • The 1961 European Social Charter, the ICCPR, and the International Labor Organization Convention on Freedom of Association and Protection of the Right to Organize refer to freedom of association and freedom to form and join trade unions, but only exclude the armed forces and police, not public servants.
      • The European Court of Human Rights was therefore encouraged to interpret article 11 as restricting the ability for states to limit public servants’ freedom of association.
      • The European Court of Human Rights reads article 11 against the backdrop of other international human rights law: Demir v Turkey (2008).
      • However, the statements and positions of other bodies are not authoritative or binding on the Court.
    • Example: The 1981 African Charter on Human and Peoples’ Rights explicitly states that the African Commission oon Human and Peoples’ Rights shall draw inspiration from international law, and lists the instruments that may be taken into account.
    • Example: article 39 of the 1996 South African Constitution states that courts and tribunals are to consider inter alia international law when interpreting the Bill of Rights.
  • The jus commune (common law) of human rights can create uncertainty as it may be difficult for litigants and states to know the extent to which comparative law is invoked.

Eleanor Roosevelt and the Universal Declaration of Human Rights

Notes taken from the video Eleanor Roosevelt and the Universal Declaration of Human Rights <https://www.youtube.com/watch?v=MZFUuGOPLPg>.

  • In 1948 the UN Human Rights Commission drafted and adopted the UDHR
  • After World War II and the Holocaust, many were convinced that human rights and fundamental freedoms were matters of international concern.
  • During the war, the Allied leaders had discussed a successor organisation for the League of Nations.
  • The UN was founded in June 1945 to
    • save succeeding generations from the scourge of war,
    • unite to maintain peace and security,
    • promote the economic and social advance of all peoples, and
    • reaffirm faith in fundamental human rights.
  • Eleanor Roosevelt had international respect and admiration as a political activist and social reformer, and was President Franklin D Roosevelt’s First Lady.
    • She accepted President Truman’s offer to be a delegate to the UN, and was the only woman in the US delegation.
    • She quickly gained respect for her contributions and was elected to chair the Commission on Human Rights.
  • The Commission on Human Rights was tasked with preparing an international bill of rights.
    • The first major debate was over the type of document to be made:
      • Some states preferred a legally-binding document.
      • Other states wanted a non-binding declaration.
    • The Commission compromised and draft three separate documents:
      • a non-binding declaration,
      • a binding covenant, and
      • measures of implementation.
    • States had different preferences for the type of rights — some valued political and civil rights, others valued economic, social and cultural rights.
      • The US saw human rights as including free elections, free speech and freedom of religion.
      • The Soviets viewed human rights as including the rights to healthcare and rights to work.
  • Eleanor Roosevelt was diplomatic: she respected her fellow Commission members and created a safe and informal atmosphere for discussion.
    • She also kept the delegate focused with a demanding schedule.
  • The UDHR was completed in 1948, and drew from domestic sources of human rights.
    • It was the start of the international bill of rights, which also included the ICESCR and ICCPR.
    • It has been used as a model for human rights provisions in 90 domestic constitutions.
  • The UDHR has arguably become part of customary international law, and thus binding on all states, despite its initially non-binding status.
  • It has also inspired and encouraged individuals and organisations to promote human rights.
  • It has two main failings:
    • lack of awareness (many do not know it exists), and
    • lack of enforceability.
  • It has no binding force of its own, so there have been many violations:
    • The US was in breach of article 2 of the UDHR until the 1960s, by failing to provide rights and freedoms without discrimination.
    • The US is in breach of articles 5 and 10 by torturing prisoners in Guantanamo Bay and denying them the right to fair and public hearings.

Mary Ann Glendon of Harvard Law School on the making of the Universal Declaration of Human Rights

Notes taken from the video Mary Ann Glendon and the Universal Declaration of Human Rights <https://www.youtube.com/watch?v=YDLYuUB5XC4>.

  • When drafting on the UDHR began no one was confident that agreement could be reached on a set of principles.
  • A meeting of a group of philosophers from around the world was convened to discuss the theoretical foundations for the UDHR.
    • Out of that came a commonly-agreed set of rights and freedoms from which no one would dissent.
  • Even though there was input from many different sources, when the UN adopted the UDHR its membership did not include sub-Saharan Africa and other areas not yet decolonised.
  • The idea of universality comes from Western traditions.
    • Despite this, it was able to be signed by representatives from Asian countries and countries with predominantly Muslim populations.
  • The goal of the UDHR was not enforcement — it was setting conditions so atrocities would not occur, or would at least be reduced.
  • Education was a goal of the UDHR: that the rights could become a reality through paths appropriate to different cultures.
  • The UDHR shows that there was a time when people from different backgrounds came together to articulate a path forward toward peace and justice.

Franklin D Roosevelt and the Second Bill of Rights

Notes taken from the video FDR Second Bill of Rights Speech Footage <https://www.youtube.com/watch?v=3EZ5bx9AyI4>.

  • FDR believed certain economic proofs had become accepted as self-evident.
  • He proposed a ‘second bill of rights’ to establish universal security and prosperity for all, including:
    • the right to a useful and remunerative job,
    • the right to earn enough to provide adequate food, clothing and recreation,
    • the right of farmers to raise and sell products at a sufficient return to sustain them and their family,
    • the right of businesspersons to trade in an atmosphere of freedom, including freedom from unfair competition and monopolies,
    • the right of families to a decent home,
    • the right to adequate medical care, and the opportunity to achieve and enjoy good health,
    • the right to adequate protection from the economic fears of old age, sickness, accident and unemployment, and
    • the right to a good education.
  • These rights would provide security and lasting peace.

Are rights interdependent and indivisible?

Notes taken from Olivier De Schutter (ed), Economic, Social and Cultural Rights as Human Rights (Edward Elgard Publishing, 2013) Editor’s Introduction.

  • 60 years elapsed between the adoption of the UDHR and the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
    • The Optional Protocol provided a right for individual communications before the Committee on Economic, Social and Cultural Rights.
    • This period was dominated by controversy over the status of these rights.
  • Despite consensus on the need to include economic and social rights, there were disagreements over:
    • whether the fulfilment of these rights required an activist state to deliver corresponding public programmes,
    • the inability of developing countries to fulfil them immediately, and
    • the role of international cooperation and aid in their universal realisation.
  • The Soviet Union and other socialist states believed the role of state should be recognised in realising economic and social rights.
  • The United States and other western countries considered that states should be free to determine how and by whom they should be implemented.
  • This controversy was avoided by have one working group draft a non-binding statement (the UDHR) as a statement of principle.
  • UDHR art 22 states: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’
    • The ‘organization and resources of each State’ conveys both the freedom of the state to choose its means of realisation and that realisation is relative to the level of the development of the individual state.
  • In 1952 the UN General Assembly adopted a resolution that the UDHR be implemented through two separate covenants.
    • Both sets were considered equally important, interdependent and indivisible by diplomats.
    • The dominant view was that they were sufficiently distinct as to warrant separate treatment.
    • Implementation required different legal techniques.
  • It was generally believed:
    • civil and political rights generally required the state to abstain from taking action that would infringe on the rights, and
    • economic, social and cultural rights imposed positive obligations on states to realise them.
  • Civil and political rights are definite and inexpensive enough to justify independent expert monitoring.
  • Economic, social and cultural rights can only be implemented progressively.
  • ICESCR art 2(1) mirrored UDHR art 22: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’

Regional promotion and protection of human rights

  • The Council of Europe was established in 1949 and has 47 members.
    • It has measures to protect a wide range of human rights.
    • The European Court of Human Rights was established under the auspices of the Council of Europe.
    • The Council of Europe has spawned several human rights conventions:
      • The Convention for the Protection of Human Rights and Fundamental Freedoms.
      • The European Social Charter.
      • The Anti-Torture Convention.
      • The Convention Against Human Trafficking.
  • The African Union (formerly the Organisation of African Unity) has developed human rights mechanisms.
  • The League of Arab States adopted the Arab Charter on Human Rights in 2004.
  • The Association of Southeast Asian Nations (‘ASEAN’) established the ASEAN Intergovernmental Commission on Human Rights (‘AICHR’) in 2009 and adopted a declaration on human rights in 2012.
  • The Organization of American States established the Inter-American System for the Protection of Human Rights.
    • The Inter-American System consists of:
      • the Inter-American Commission on Human Rights, and
      • the Inter-American Court of Human Rights.
    • The Commission monitors human rights conditions across all 35 countries in the Americas.
      • It can receive complaints (‘petitions’), determine violations, and identify remedies including compensation and avoidance measures.
      • The seven commissioners visit countries, hold hearings on issues of concern and publish reports on human rights conditions.
    • The Court issues judgements in actions brought against states in cases not successfully resolved by the Commission.
      • Only 20 of the 35 states have accepted the jurisdiction of the Court.
    • The Commission and Court can both ask the government to take action to prevent irreparable harm (‘provisional’ or ‘precautionary’ measures).
    • The Inter-American System is not intended to usurp domestic judicial processes, and is a court of last resort.
    • Advocates can use the System to raise awareness of human rights problems and increase pressure for governmental action.
    • All states in the Americas have agreed to respect the human rights in the American Declaration on the Rights and Duties of Man.
    • Some states have ratified regional treaties on human rights, including the American Convention on Human Rights.
    • Rights generally protected include: the rights to life, liberty, human treatment, equality, freedom of religion, freedom of thought and expression, freedom of association and assembly, privacy, family life, movement, fair trial, property, judicial protection, honor and dignity, name, nationality, participation in government, benefits of culture, health, education, asylum, work and social security.
    • Petitioners and complainants can be individuals, groups or NGOs.
    • Petitions must provide certain minimum information per art 28 of the Commission’s rules of procedure:
      • Identify the victim or group.
      • Describe the harm in detail.
      • Explain why the government is responsible for the harm.
      • Identify specific officers, agencies, laws or policies the caused or allowed the violation to occur.
      • Identify the state in which the violation occurred, and the state responsible (usually the same).
      • If the state has not ratified the American Convention, it must allege violation of the American Declaration.
      • Identify the date or timeframe of the violation.
    • Domestic remedies must have been exhausted.
    • The petition must be submitted within six months of exhausting domestic remedies.
    • If domestic remedies are unavailable/ineffective/insufficient, the petition must be submitted within reasonable time.
    • The same complaint cannot be submitted to both the Commission and another international dispute settlement mechanism.
    • If requesting precautionary measures, the petition must explain the risks faced.
    • Petitions are processed in three stages:
      • initial evaluations,
      • admissibility, and
      • merits.
    • Petitions may in some circumstances be referred to the Court.
    • Requests for precautionary measures are decided within a week to several months, depending on urgency.
    • Petitions are generally evaluated in order of receipt, unless there are particularly urgent reasons to evaluate it sooner.